Advocate General Says EU Libraries May Digitize Books In Their Collection Without Permission

from the baby-steps dept

A few days ago, Techdirt wrote about the Authors Guild losing yet again in its attempt to stop university libraries and Google scanning books without permission. Over in Europe, a similar, if rather more limited decision has been handed down by the Advocate General of the European Union's Court of Justice (pdf). As is usual, this is only a preliminary ruling, but is generally followed by the court itself. The case concerns a dispute between the Technical University of Darmstadt and a German publishing house, Eugen Ulmer KG:

The publishing house is seeking to prevent (i) the university from digitising a book it holds in its library collection published by Eugen Ulmer and (ii) users of the library from being able, via electronic reading points provided therein, to print the book or save it on a USB stick and/or take those reproductions out of the library. The university has digitised the book in question and made it available on its electronic reading posts. It has refused the offer of the publishing house to purchase and use as electronic books ('E-books') the textbooks it publishes.

Here's the key part of the decision:

the Advocate General considers that the [EU copyright] directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if their being made available to the public by dedicated terminals requires it. That may be the case where it is necessary to protect original works which, although still covered by copyright, are old, fragile or rare. That may also be the case where the work in question is consulted by a large number of students and its photocopying might result in disproportionate wear.

However, [the Advocate General] Mr Jääskinen makes clear that the directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work.

Lastly, Mr Jääskinen takes the view that the directive does not allow the users of dedicated terminals to save the works made available to them on a USB stick.

As that indicates, this is a fairly specific result, rather than a broad general right as in the US digitization case. However, what is encouraging is that it is the latest in a string of gooddecisions handed down by the European Union's Court of Justice that are starting to introduce a modicum of common sense to Europe's outdated copyright laws.

tame copyright-maximalist apologism

The preliminary ruling is rather tame. According to just about every copyright within the EU, he could also have ruled:

- That digitisation of a collection in its entirety is absolutely within the rights of libraries (because copyright is about publishing, and not about what the holder of a physical copy of a work does with it).

- That offering the work on a reading station is ok; because that's not actually leaving the library, and thus is not actually "publishing" (It could be argued it is. But it would be rather unclear how the library should display the work otherwise).

- But even more, that the possibility of copying a work onto a USB stick may be allowed, but must not be done by the library itself. You see, if you loan out a work you MAY copy it for yourself. You always have the right to copy everything, whether it's bought, loaned or stolen -- just not to publish.

Re: tame copyright-maximalist apologism

"because copyright is about publishing, and not about what the holder of a physical copy of a work does with it"

Erm, that's the sticking point. What was once perfectly OK with a physical copy suddenly becomes questionable with a digital copy, especially online where the boundaries between and definitions of "sharing", "publishing" and "distribution" become blurred. The whole filesharing debate is that while few people think twice about lending a physical CD to a friend, it suddenly be comes immoral and illegal when the sharing consists of a new digital copy.

"You always have the right to copy everything, whether it's bought, loaned or stolen"

That depends on the law where you reside. For example, while many of them were unenforceable in reality, the UK has always had legal restrictions on what you can do with physical media, even just for personal use.

Note that this is a directive, equivalent of our executive order. Executive branch can NOT create laws. This has been the case since Roman laws, which we adopted for Western jurisprudence. Then, Mr Jääskinen can shove his "directive" down my a**.